Following the conclusion of phase one (“the divorce”) of the
Brexit negotiations last December, the United Kingdom and the European Union
have officially entered phase two of the negotiations, discussing the framework
for the UK-EU future relationship and deciding the arrangements necessary
during the period transitioning to that relationship. Frustrated that the
discussions have produced few concrete ideas of what this future relationship would
look like, two weeks ago the EU’s chief negotiator, Michel Barnier, told
UK leaders that the time had come to make a choice — will the UK be in or out
of the EU customs union? Responding to growing concern within the Conservative
Party that she might bend to opposition pressure, last week UK Prime Minister
Theresa May made
her position clear; the UK will “categorically [be] leaving the customs union.”

A Refresher on Customs Unions

A customs union is a type of trading block that unifies the
tariff policy of all members. Customs unions are defined by two key features:
1) a free trade area between members (members do not charge duties on goods
imported from other members) and 2) a common external tariff (any goods
imported from non-member countries are charged the same import tariff,
regardless of which member country the goods enter the union). Here, we should distinguish
the EU customs union from the EU single market. The customs union unifies
external tariffs, but the single market is what allows the free flow of goods,
services, people, and capital. Thus, it is possible to be in the single market,
but not the customs union (like Iceland, Liechtenstein, Norway and
Switzerland), or be in the customs union, but not the single market (like
Andorra, San Marino and Turkey).

May’s Position and the Way Forward

Leaving the customs union risks seriously disrupting the
lion’s share of UK trade. The EU is the UK’s largest trading partner, comprising
43% of all UK exports and 54% of all UK imports. Exiting the customs union will
put up new tariff barriers, depriving UK-EU traders of the duty-free access they
currently enjoy. On the other hand, leaving the customs union would allow the UK
to escape the confines of the common external tariff, thereby making it
possible for the UK to implement its own tariff policy and negotiate its own
trade agreements with non-EU members. As the EU itself has recognized
that 90% of global growth is expected to come from outside the EU, this could
be a worthwhile tradeoff for the UK.

Still, May is holding
on to hopes of both having her trade cake and eating it too. In August of last
year, May’s trade team released a “future
partnership paper” outlining what is still the UK’s stance for negotiating
the future UK-EU trade relationship. Most notable from the paper was the
proposition of a “customs partnership.” Under this scheme, the UK proposed that
it would synchronize its import policies for intermediary goods brought into
the UK that are part of a supply chain for final consumption in the EU. Thus,
for American widgets meant to be consumed in the UK, the UK could charge x%;
but if those same American widgets were to be used in other products that would
eventually be shipped to the EU, the UK would be charge the EU rate, y%.

Unfortunately for May, EU officials are underwhelmed
at the idea, calling the UK’s proposal for a customs arrangement “unrealistic.”
Even more doubtful is whether such an arrangement would comply the WTO’s
non-discrimination principles. As the negotiations proceed, the UK will need to
be warry not to compromise its obligations to the world trading system in the hopes
of maintaining current access to the EU market.

On October 27, 2017 Burundi, a year after declaring its
intentions, became the first country to withdraw from the International
Criminal Court. The timing of Burundi’s
withdrawal coincides with a report released by the United Nations Commission of
Inquiry. The report recommended that a criminal investigation on crimes
committed in Burundi be initiated in response to evidence of torture, sexual
violence, extrajudicial killings, disappearances, and illegitimate arrests and
detentions sponsored by the regime of Burundi’s president, Pierre Nkurunziza.

At the time that Burundi announced its decision to withdraw
from the Rome Statute, it seemed like it could be the leader in a wave of
withdrawals by other African nations. Many nations in Africa have criticized the
ICC as being a tool for post-colonial control of African nations and a proxy
for Western-led regime change. The ICC came under fire around the time it chose
not to pursue charges against William Ruto and Uhuru Kenyatta, Kenya’s deputy
president and president, who were both accused of violence surrounding Kenya’s
2007 election, which resulted in over 1,100 deaths and disappearances. However,
South Africa rescinded on its threat in March of last year after its High Court
ruled that Parliamentary approval was required to carry out the measure. Gambia
also backed down after a presidential election defeated the 22-year incumbent.
These political events forestalled a potential exodus from the ICC by prominent
African members.

Burundi’s exit is an illustration of what can perhaps be
expected when the Court attacks sitting officials instead of the fringe rebel
groups it has in the past. However, it might be a symptom of an underlying
fatal problem. At the very least, it presents an opportunity to reflect on the
future of the ICC, and how it will respond to its critics going forward.

For instance, the criticism cited by Burundi and other
African countries is that Africa is unfairly targeted while other world
conflicts, especially those in which Western countries are involved in, are
ignored. The ICC’s record seems to support that notion to some extent.
Presently, nine out of the ten formal investigations conducted by the ICC are
Africa-related, and all of its trials have been against African
defendants. Additionally, the glaring absence of three of the five Security
Council powers from the Rome Statute (the United States, Russia, and China)
rankles member states who see the ICC as a political instrument wielded against
the Global South. A rebuttal to this criticism might be that of the nine
African countries being investigated by the ICC, five have been referred to the
Court by their own governments. In only two cases has the ICC’s prosecutor used
her discretion to bring a case. Further, a look at the list of countries that
are being examined by the ICC reveals a less Africa-centric perspective.
Countries under “preliminary examinations” include Afghanistan, Burundi,
Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, Registered Vessels of
Comoros, Greece, Cambodia, and Ukraine.

Second, the argument exists that the Court is wildly
inefficient. Since it began functioning in 2002, judges have issued only 31
arrest warrants. 25 cases have been heard before the Court and of those cases
verdicts have been issued in six of them. Ultimately, nine people have been
convicted and one was acquitted. Those results have cost over $1 billion since
the Court’s inception, and today the ICC has an operating cost of $145 million
per year. However, one might concede that investigations surrounding the
gravest human rights violations are complex and time-consuming, as evinced by
ad-hoc tribunals of isolated conflicts, such as the International Tribunal for
the Former Yugoslavia. This is especially so when there is no cooperation from
the country in which one is investigating.

There are tensions over the Court’s willingness in the
coming years to test nonmember states and regions that it has historically not
pursued. For instance, in its preliminary examination of Afghanistan, will it
encompass United States actors in its inquest, or even Afghan state actors, or
will it choose to go after dissident groups, like the Taliban, and count on
some international cooperation? Russia has already blocked two Security Council
resolutions to refer the Syrian crisis to investigation by the ICC. In face of
this opposition, how aggressively will the ICC pursue allies of the Russian
government, or the Russian government itself? Will it target the most culpable
individuals?

Notwithstanding the criticisms and the setback of Burundi’s
exit, one can say that some justice is preferable to no justice and that every
incremental step forward in prosecuting human rights offenses is a victory and
a testament to the better angels of our humanity.

As for Burundi, it is possible that it has not escaped the
Court, despite its best efforts. Under the Rome Statute, crimes in nonmember
states can still be referred to the Court for investigation by the UN Security
Council. In this case, the commission did recommend a referral. The Court has
stated that it would still claim jurisdiction over Burundi, but it might be
difficult for them to do so. The status of Burundi’s case is a preliminary
examination. For it to rise to an investigation, the ICC’s judges would have to
grant the request of the Court’s prosecutor, and Burundi will most likely argue
that there is no legal basis for them to do so now it is no longer a party.

Prime Minister Ahmed bin Dagher has accused southern
separatists in Yemen of attempting a coup after fighting began in the country’s
southern port city, Aden. The separatists are known as the Southern
Transitional Council (STC). The STC is led by Aidarous al-Zubaydi, the former governor
of Aden who was forced out of his position by President Abed Rabbo Mansour
Hadi. Fighting first broke out on Sunday, January 28th, when a deadline
expired that the separatists had issued demanding the resignation of the government.
The separatists seek independence for the southern part of Yemen, which was
previously a separate country before a unification with the northern part of
Yemen in 1990. The Southern Transitional Council has now demanded the removal
of the Prime Minister and accused the government of corruption. In just a few
days, the council has seized control of most of Aden and surrounded the
Presidential Palace, which contains members of President Hadi’s government.
The President himself is based in Riyadh.

The conflict between President Hadi’s government and
the separatists calls into question the stability of a coalition that has been
fighting on the same side of the Yemeni Civil War
since 2015. Hadi’s government is backed by Saudi Arabia, which leads a
coalition of nine other countries in a military intervention against the Houthi
movement. The civil war began when the Houthi movement, which supports Yemen’s
Shia Muslim minority, rebelled against the government. The Houthis now control Yemen’s
capital, Sanaa, and much of northern Yemen. Although the Saudi-led coalition
has been fighting in support of Hadi’s government for the past three years, the
United Arab Emirates is a key member of the coalition and supports the southern
separatists. The separatists are financed and armed by the UAE, while Saudi
Arabia supports Hadi’s government. Al-Zubaydi has made public comments since
the fighting began declaring that the separatists remain committed to the
coalition and to driving the Houthis out of Sanaa.

President Hadi’s government and the UAE have been in
conflict for most of the existence of the coalition. The UAE has taken
advantage of the situation to secure control over oil and gas ports in southern
Yemen, and President Hadi has publicly accused the UAE of acting as an occupier
in Yemen. President Hadi is also allied with the Islah Party, a branch of the
Muslim Brotherhood and a known enemy of the UAE.

As of Wednesday, the International Red Cross reported
at least 36 killed and 185 wounded in this week’s fighting. The larger Yemen
crisis has been declared the world’s worst
man-made humanitarian disaster by the United Nations. According to the UN
Human Rights Council, over half of the people who have been killed in the
conflict are civilians, and civilians are the victims of repeated and
“unrelenting violations of international humanitarian law.” Air strikes from
the Saudi-led coalition are the leading cause of overall civilian casualties. Currently
about 22.2 million people, or about 75% of Yemen’s population, are in need of
humanitarian assistance.

The Montreal Protocol on Substances
that Deplete the Ozone Layer (the Montreal Protocol) celebrated its thirty
years on September 16, 2017. The Montreal Protocol is an international treaty
designed to protect the ozone layer by phasing out 99 percent of nearly 100
ozone-depleting substances (ODS), including CFCs, HCFCs and halon. As one of
the most successful and effective environmental treaties ever negotiated and
implemented, the Montreal Protocol has helped reduce the depletion of the ozone
layer by about 20 percent from 2005 to 2016. The shrinking of the ozone hole
will bring numerous benefits to people’s health (reducing the chance of having
skin cancers and eye disorders) and agriculture. It will also help slowdown global
climate change and to prevent extreme weather events (hurricanes,
floods and droughts). The
Montreal Protocol was a “milestone for all people and our
planet,” said UN
Secretary-General António Guterres.

There are
a number of multinational treaties dealing with environment issues. Among them,
the Montreal Protocol has achieved a great deal of success in atmosphere
protection. The lackluster compliance
with the Kyoto Protocol, which was set in place to reduce the emissions of
greenhouse gases, as the prominent counter-example. The success of the Montreal
Protocol does not come from nowhere.

The
Role of the United States

The United
States government played an exceedingly aggressive role in producing the
Montreal Protocol, which contributes to its success. By the 1980s, the industry
within the United States achieved significant progress in producing safe
substitutes for CFCs. Not only was the financial obstacle progressively removed,
the ongoing disagreement within the Reagan Administration and the U.S.
Environmental Protection Agency (EPA) was resolved after a careful
cost-benefit analysis from the President’s Council of EconomicAdvisers,
which suggested that the costs of controls would be farlower than anticipated, and the benefits far
higher.Considering
the benefits to mankind and the cost of reducing CFCs when its substitute was readily
available, even unilateral action was well-justified for the United States.
“But if the world joined the Montreal Protocol, the benefits for the United
States would be nearly tripled, because it would prevent 245 million cancers by
2165 including more than five million cancer deaths,” stated by Scott Barrett
in Environment and Statecraft: The Strategy of Environmental Treaty-Making.

The other
element that encouraged countries to ratify the Montreal Protocol was its trade
provisions. The trade provision limits the signatories to trade only with other
signatories on CFCs and other ODS. Once the main producing countries signed up to
the treaty, it was only a matter of time before all countries joined in the
system.

After over
thirty years in picture, the Montreal Protocol still benefits the mankind. The
success of the Montreal Protocol provides a workable system when environment protection
requires global cooperation.

China’s
Great Firewall will remain closed to companies which choose not to conform to
China’s online censorship and oversight laws. Chinese regulators announced last month at a conference in
Geneva that Google and Facebook must adhere to local law if they want access to
all 751 million of mainland China’s internet users. Google, Facebook, and
Twitter are among the companies currently blocked from providing services in mainland
China.

According
to Qi Xiaoxia, Director of the Bureau of
International Cooperation at the Cyberspace Administration of China, if the
companies choose to comply with Chinese law, they will be allowed access to the
county’s massive online market. Speaking before the Internet Governance forum
at the U.N.’s European headquarters, Qi Xiaoxia went on to note that “[t]he
condition is that they have to abide by Chinese law and regulations. That is
the bottom line. And also, that they would not do any harm to Chinese national
security and national consumers’ interests.”

Considered
one of the most comprehensive legislative acts in Chinese history, mainland China’s
cybersecurity law went into effect just six months
ago. The law’s primary purpose is to allow Chinese officials unfettered access
into the digital lives of their population. Among the law’s many provisions,
tech companies must store Chinese data locally, submit to data surveillance,
and provide censorship tools to prevent users from subverting the government’s
sovereignty over expression.

The law
also provides Chinese officials with the power to conduct “national security
reviews” of technology that companies want to use or sell in the Chinese market.
These security reviews may allow China to identify weaknesses in foreign
technology security to exploit in their own intelligence gathering, according
to a report by the Insikt Group.

Violators
of the law face fines of up to 1 million Yuan (~$150,000) or even potential
criminal charges.

Reactions
among U.S. technology executives haven been overtly negative according to a new survey conducted by the U.S.-China
Business Council. Of the respondents surveyed, 82% noted that they “are
concerned about the impact of China’s cyber and data regulations.”

Driving
this concern is the fear that Chinese oversight may put their intellectual
property at risk. Early in December, at China’s state-sponsored World Internet
Conference in Wuzhen, representatives from 60 foreign technology companies and
trade groups expressed concerns over China’s “national security
reviews.” According to the representatives, extensive review of their network
equipment could reveal proprietary source code putting their trade secrets at
risk.

In 2016,
internet watchdog firm Freedom House placed China as the world’s “worst
abuser of internet freedom” for the second consecutive year.

Despite
these concerns, some companies are moving forward with compliance. Shortly
after the law went into effect, Apple Inc. announced plans to build a new data center in mainland
China in order to conform with the law’s data localization requirements. Since
that announcement, Apple has taken down hundreds of apps at therequest
of Chinese officials, including Microsoft’s Skype, from its online store. Many
of the removed apps enabled users in mainland China to access virtual private
networks (VPNs), a means of evading censorship.

Apple’s
close relationship with Chinese regulators has not gone unnoticed. In an open letter following Apple’s removal of the
VPN apps, U.S. Senators Patrick Leahy (D-Vermont) and Ted Cruz (R-Texas) asked
the iPhone giant to “push back” on China’s control over free expression.
According to the letter, companies like apple “have both an opportunity and a
moral obligation to promote freedom of expression and other basic human
rights.”

In any
event, the position of Chinese regulators remains clear. According to Qi
Xiaoxia, “[w]e are of the idea that cyberspace is not a space that is
ungoverned. We need to administer, or supervise, or manage, the internet
according to law.” And if foreign tech companies want access to mainland China’s
digital market, they will have to comply with China’s laws.

On
November 15th, 2017, Georgetown University Law Center’s Human Rights Institute
hosted a panel discussion on business and human rights. Monitored by Professor
Mitt Regan, representatives from major corporations, the Responsible Business
Alliance, and the federal government spoke about how better business practices
can have an impact on human rights across the globe. Although there is
international cooperation in the area of human rights, protection from the harmful
impacts of business operations still varies widely. Because there is no global
regulator to ensure that everyone enjoys the same basic levels of protection,
there is a major governance gap in human rights. This gap is now being
addressed in part by businesses, who have taken a new approach to viewing their
companies as having an obligation to respect certain human rights, regardless
of local laws.

Genevieve
Taft-Vazquez is a Director in the Global Workplace Rights department for the
Coca Cola Company, and discussed how Coca Cola has tried to move from a supply
chain evaluation to a deeper look at the whole value chain of Coca Cola
production and manufacturing. Coca Cola works under a franchise model, and they
previously focused on ensuring respect for human rights with their independent
bottlers by providing Guiding Principles for their suppliers. The company has
moved to a more comprehensive approach, looking at agricultural production,
advertising sponsors, human rights due diligence for mergers and acquisitions,
and evaluating the implications of buying land for new bottling sites.

Katie
Shay, Legal Counsel on Business and Human Rights for Oath (formerly Yahoo),
discussed the issues of privacy and freedom of expression. These are the main
human rights issues of concern for this type of major internet company. Oath
maintains data on their users that local governments would like to access, and
Oath is the gatekeeper between the information and government actors. To
protect privacy rights, Oath tries to provide notice to the user in most cases.
In other situations, where governments would like content to be removed, Oath
works to ensure that the request was legal if the content is not in violation
of Oath’s own policies on permissible content. Working with local governments
in this way can be a tricky task, as the consequence of being non-compliant is
often that their services will be blocked in the country at issue.

Carlos
Busquets works for the Responsible Business Alliance, a group of tech companies
that came together to work on human rights issues (the group has now opened up
to other companies as well). The companies came together to agree on a common
Code of Conduct for businesses to address a number of human rights issues. One
key issue in the tech industry is the use of forced labor. A 2013 report
revealed that 30-40% of those working in electronics are working under forced
labor conditions. The RBA came to the conclusion that it was not enough for
electronics companies to say they do not want their products made by those
under forced labor; companies have to make sure that the ways workers find
themselves in a forced labor situation are no longer present. Companies must
then go a step further to try and change the very market that creates incentives
for workers to be abused in such a way. The RBA created a set of due diligence
tools for companies to use to combat practices and improve the issue and to
create a market for ethical recruitment.

Jenny
Stein is the Acting Team Leader for the Internet Freedom and Business and Human
Rights team in the Office of Multilateral and Global Affairs within the Bureau
of Democracy, Human Rights, and Labor at the U.S. Department of State. Ms.
Stein’s team approaches business and human rights as a continuously evolving
paradigm. The Bureau promotes human rights generally and also addresses
critical issue areas, such as Burma, North Korea, and Bangladesh in the past.
They work bilaterally with governments as well as with multilateral
organizations such as the UN Human Rights Counsel. Major focuses currently
include trying to advance accountability and transparency, and how to guide
companies on their human rights responsibilities and conduct outside of the US.

Three
guiding principles in human rights law are to protect, respect, and provide
remedies. Many believe that this third pillar is underdeveloped, and the panel
spent some time discussing the development of remedies. Conventionally, there
are two types of remedies, judicial and nonjudicial. An example of the possibilities
of judicial remedies includes the current Supreme Court case of Jesner v. Arab
Bank, in which the Supreme Court will address the question of whether companies
can be sued abroad for human rights abuses. An example of a nonjudicial remedy
is the system of complaints that can be made through the U.S. State Department
if a business violates one of the OECD guidelines. However, the panelists
encouraged the audience to think more broadly about the concept of remedy, and
to ask ourselves: how can we remedy the broader issue, and not just an
individual case? This is an ongoing and evolving issue in human rights law, and
one that businesses are working to address.

Imagine
the devastation, an international bad actor hacks into an American airplane in
flight and autopilots the plane remotely. In a post-9/11 world, this is a
frightening possibility. Thankfully, according
to
the Department of Homeland Security (DHS), we are not at that point.

We
are, however, at the point of government officials being able to successfully test
hack
a Boeing 757, as a DHS official explained at last month's CyberStat
Summit.

According
to Avionics,
the test hack occurred in September 2016, but DHS official Robert
Hickey didn't announce the successful attempt publicly until
last month. Hickey told
CyberStat Summit attendees that the details of the 757 hack are classified, but
that the joint government, industry and academic team that executed the test
“establish[ed] a presence” on the aircraft via the plane’s radio frequency
while the plane was parked at Atlantic City airport. To highlight the potential
risks, the hack team only used items that a typical flier could bring through
the TSA security checkpoint.

While
the hack was executed
remotely – meaning that no one was physically touching or on the aircraft – the
“hackers” couldn't actually reach the plane’s controls that alter the flight
path. This probably reads as comforting news to most frequent fliers, but the
potential for a commercial aircraft to be vulnerable to remote manipulation
seems to be generations ahead of a passenger’s cell phone signal interfering
with ground systems.

And
even though production of Boeing 757s was discontinued
in 2004, many commercial airlines still have 757s in their employ, and the president
and vice
president still travel on the 757 model.

We
live in a world where cyber-attacks
are daily news and international cyber-criminals hold American businesses’
information hostage. If a terrorist ever managed to take down a single
commercial U.S. airliner – or infinitely worse, many airliners in a coordinated
attack – the information hacks we see so frequently would pale in comparison to
the devastation this kind of coordinated aviation cyber-attack would bring. Now,
the U.S. government’s national security teams must not only worry about
cyber-attacks that could cause massive booking problems, strand passengers, and
create massive delays, but must assess and mitigate the possibility of
cyber-attacks that could take lives at the click of a button or the maneuver of
a virtual joystick.

An
ability to breach the cockpit could take us into a world where a 9/11-style
attack could be executed without the hijackers anywhere physically near the
aircraft. The international legal complications of such an attack may give
cyber-smart international terrorists a get out of jail free card.

The
legal quandary could get even messier based on which country a hacked plane
took off from and where it was headed. The type of agreement, or lack thereof,
that the U.S. has with the country of the flight’s origin, plus the location of
any mid-flight accident, could affect possible jurisdictions for the government
and passengers’ survivors to bring suit.

Thankfully,
there are several steps and missing pieces any potential bad actor would have
to put in place to get from a successful government on-the-ground, stationary hack
test that couldn’t reach the plane’s control system to a successful hack of a
mobile airborne target that completely takes over control of the craft.

In the wake of the
DHS test hack news, cybersecurity analyst and former State Department adviser
Morgan Wright joined FOX News to discuss the test’s
implications. Citing our aircrafts’ aging infrastructure and the successful
hack, Wright expressed his concern: “If you take down one plane, I have to act
as though every plane is vulnerable, and now I have to defend every single
plane.”

The practice of international arbitration continues to develop in complex ways that sometimes address discontent with the legal system as a whole. It thus remains useful to gauge the experience and expertise of practitioners familiar with the growth within and around the field of international arbitration. Only then can we explore the intricacy of the changes afoot.

Hosted by the Center on International Commercial Arbitration, at the American University Washington College of Law, a panel of lawyers convened on a cold day in November 2017 to do just that. Three attorneys more than capable of holding their own in arbitral proceedings sat down to discuss current salient issues in Bilateral Investment Treaty (“BIT”) and International Centre for Settlement of Investment Disputes (“ICSID”) arbitration. Professor Susan Franck opened the debate by describing the speakers’ qualifications. There were legal representatives from both sides of the typical arbitral proceeding with experience in fields from infrastructure, mining and energy corporations to sovereign states. Each attorney, when asked, highlighted the interplay between public perception and the legitimacy of the institutional framework.

The variety of different actors and interests has produced a difficult interaction for international arbitration lawyers to analyze, particularly in ad hoc BIT and ICSID arbitration proceedings. This list of actors includes the parties to the arbitration – most commonly international corporations and a sovereign state – as well as the citizens of that state and other states. The current environment of international investment law was crafted largely with the intention of ensuring the protection of international corporate investments, a one-sided affair that, in case of arbitral awards against the state, can lead to the perceived lack of legitimacy in the system. This systemic structure has recently come under scrutiny in a search for the protection of state sovereign interests in enacting relevant regulatory protections.

Nevertheless, that push can fail to gain legal traction in international arbitral bodies, which are forced to rely on black-letter law rather than public interest in making determinations, leading often to disastrous results. In the paradigm cases, particularly the cases readily available to the casual newsreader – e.g. Philip Morris and Australia's plain packaging laws – corporate interests clash with the international normative construct of comity, which favors the ability of a foreign jurisdiction to legislate as it wishes. In the Philip Morris case in 2012, Australia banned companies selling tobacco products from displaying their corporate logo and brand on cigarette packages, drawing immediate backlash from the tobacco industry. Philip Morris initiated arbitration proceedings against Australia under the Hong Kong-Australia BIT, and although the three-arbitrator panel found it lacked jurisdiction to hear the case in December 2015, the dispute prompted toxic reactions in the national and international press.

It has often been left to three panel arbitrators to decide the clash between public health, environmental, or human rights interests and the legal obligations states owe to international investors, which had led critics to question the one-sided recourse settlement process set out in bilateral treaties and by the World Bank’s ICSID.

Moving forward, the speakers discussed the attributes of several proposed systemic changes, yet failed to agree on one solution. The first, and perhaps the most ambitious, is the creation of an external multilateral court designed to create legal precedent and ensure the equality of representation. A second alternative proposes that reforms to the current system, though no less significant, be achieved by a more piecemeal strategy that encourages adopting transparency provisions for arbitration proceedings as well as creating an appellate mechanism. Whether the international arbitration and bilateral treaty system will adopt any of the above changes remains to be seen, but the stimulation of the discussion by organizations such as the Center on International Commercial Arbitration provides a vital foundation for such modification.

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